In Bank. Opinion by Burke, J., with Peters and Mosk, JJ., and
Schauer, J.,*
concurring.
Separate concurring and dissenting opinion by
Wright, C. J., with McComb and Sullivan, JJ., concurring.

Burke.

Plaintiffs appeal from a judgment of nonsuit entered by the San
Francisco Superior Court at the close of plaintiffs' case in
a wrongful death action. Plaintiffs' decedent, Calvin Mark, was
electrocuted while attempting to remove or unscrew a light bulb
from a street lamp located outside his apartment bedroom window.
Plaintiffs sued, under various theories of liability,
Calvin's landlord (Mr. and Mrs. Chase), the City
and County of San Francisco ("City"), and Pacific Gas
and Electric Company ("PG&E"). We have concluded that although
a nonsuit was properly entered in favor of the landlord and City,
there was ample evidence to support a jury verdict against PG&E
and that the judgment of nonsuit in favor of PG&E should be reversed.

As we have repeatedly held, a nonsuit in a jury case "'may be
granted only when disregarding conflicting evidence, giving to
the plaintiffs' evidence all the value to which it is legally
entitled, and indulging every legitimate inference which may
be drawn from the evidence in plaintiffs' favor, it can be said
that there is no evidence to support a jury verdict in their
favor.'"
(Grudt v. City of Los Angeles,
2 Cal. 3d 575, 586-587 [86 Cal. Rptr. 465, 468 P.2d 825];
Pike v. Frank G. Hough Co.,
2 Cal. 3d 465, 469 [85 Cal. Rptr. 629,467 P.2d 229];
Elmore v. American Motors Corp.,
70 Cal. 2d 578, 583 [75 Cal. Rptr. 652, 451 P.2d 84].)

Viewed in the light most favorable to plaintiffs, the evidence
disclosed the following facts: Calvin and his three roommates
moved into the Chases' apartment building in June 1964. At once
the boys discovered that the light from a street lamp pole standing
adjacent to their bedroom window was so bright that it disturbed
their sleep; even with the drapes drawn and room lights extinguished
the boys were able to read by the light cast by the street lamp.
Calvin and his roommates complained to the Chases regarding the
light, and Mr. Chase contacted PG&E which advised him to call
City's street and lighting department. Chase did so and the City
directed PG&E to examine the lamp. Thereupon a PG&E inspector
attempted to reduce the light's glare by partly blackening a
portion of the plastic globe or canopy surrounding the bulb;
subsequently Chase also blackened part of the globe with aluminum
paint. These efforts, however, had no measurable effect in reducing
the intensity of the light. The boys themselves called City and
PG&E to complain of the matter, but the light remained undiminished
in its intensity.

In September 1964 an automobile crashed into the lamp pole, breaking
the bulb, knocking the canopy off the top, and bending the pole
toward the Chases' apartment building. Although PG&E replaced
bulb and canopy, the pole remained unstraightened. In its bent
condition, the pole was only 10 inches away from the edge of
a fire escape located just outside the bedroom window, and 55
inches from the window itself, thereby making the lamp easily
accessible to the occupants of the room. Having received no effective
assistance from Chase, City or PG&E the boys decided
to employ self-help, and from time to time thereafter
they extinguished the light simply by removing the plastic canopy
and unscrewing the bulb. The boys were able to unscrew the bulb
without incident upon several occasions prior to Calvin's death.
Twining (Calvin's roommate) testified that there was nothing
about the light to indicate that the current flowing through
the lamp was high voltage, and that there was no reason to believe
that it was any different "than the one you would have in your
room."

Each time the bulb was unscrewed and the light extinguished, employees
of PG&E were called to the scene to correct the deficiency. The
evidence showed that Luth, a PG&E employee, had screwed the bulb
back in place on January 26, 1965, and again on February 6, 1965.
On March 3, 1965, another employee, Rosner, was dispatched to
correct an outage and was informed by Luth that someone had been
tampering with the light fixture; PG&E records confirm that Rosner
had been directed to "check for tampering." Rosner found the
bulb unscrewed, was aware that someone had tampered with it,
appreciated the danger involved, and attempted, without success,
to locate someone in the apartment to warn. Rosner confirmed
that there was nothing on the light to indicate that it contained
high voltage; he testified that the bulb is "just a little bit
larger" than an ordinary light bulb and can be unscrewed in the
same manner as an ordinary bulb.

On March 9, 1965, Calvin's roommate, Twining, stepped onto the
fire escape, removed the protective canopy surrounding the bulb
by releasing a wire catch, and attempted to remove the bulb with
a towel, but was unable to do so because of inadequate friction.
Consequently, Calvin put on his ski gloves to insulate his hands
from the heat and was electrocuted while attempting to remove
the bulb. Apparently, his hand contacted an uninsulated wire
lead which provided electricity for the light. Although photographic
evidence indicates that there were two thick copper leads terminating
below the porcelain bulb socket, Twining testified that he had
never observed wires of any kind in or around the light bulb
or at its base.

At trial, plaintiff's expert, Oliphant (a consulting electrical
engineer registered in California since 1947 and engaged in projects
promoting public safety in electrical installations), testified
that there was nothing about the light pole to indicate that
it contained high voltage, and he suggested that only an expert
could make that determination simply by looking at the pole.
He further testified that in his opinion the light pole and lamp
were not safe, that community standards required that a pole
which carries high voltage be placed at least six feet from a
building or balcony to prevent possible contact by the public
(including trespassing tamperers), and that a pole any closer
to a building should bear a sign warning of high voltage or
be equipped with a lockable canopy or other protective device. Since
none of these safety features were provided in the
instant case, Oliphant considered the lamp unsafe, constituting
a dangerous condition.

1. Defendants' Negligence Toward Decedent

In nonsuiting plaintiffs, the trial court held as a matter of
law that neither PG&E the Chases nor the City could be found
negligent toward Calvin Mark. Although we agree that nonsuit
was properly entered in favor of the Chases and City, we find
sufficient evidence to support a jury verdict against PG&E and
conclude that nonsuit should not have been granted in its favor.

a. Negligence of PG&E —
PG&E asserts that since Calvin was a trespasser with
respect to the light pole and bulb, PG&E's duty
toward him was limited to a duty not to commit affirmative
acts of negligence.
(SeeRadoff v. Hunter,
158 Cal. App. 2d 770, 774 [323 P.2d 202];
cf.Oettinger v. Stewart,
24 Cal. 2d 133, 138 [148 P.2d 19, 156 A.L.R. 1221].)
As stated in
Radoff,
quoting from another case, "'Many courts, in imposing this
duty of reasonable care towards trespassers and licensees,
have drawn a distinction between active and passive
negligence, and have limited the reasonable care
test to overt acts of negligence. [Citation.] California
has quite clearly adopted this distinction and imposed a duty
to exercise reasonable care toward known licensees or trespassers
so far as active operations are concerned.'" (P. 774.) If
Radoff
represented the prevailing California rule, we would
have difficulty specifying any active negligence on
PG&E's part in the instant case, for although
Calvin could have been found to be a known
trespasser, his death resulted from a passive
condition upon or within PG&E's property.

The active/passive negligence concept, however, no
longer represents an inflexible limitation upon
the imposition of liability to trespassers or licensees.
In
Rowland v. Christian,
69 Cal. 2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496],
we traced the evolution of certain special rules
for measuring tort liability to trespassers, licensees
and invitees. We noted that originally the California rule was
that trespassers or licensees were "obliged to take the premises
as they find them insofar as any alleged defective condition
thereon may exist, and that the possessor of the land owes them
only the duty of refraining from wanton or willful injury. [Citations.]"
(P. 114.) We next pointed out that an "increasing regard for
human safety . . . led to a retreat from this position, and an
exception to the general rule limiting liability has been made
as to active operations where an obligation to exercise
reasonable care for the protection of the licensee has
been imposed on the occupier of land. [Citations.]
In an apparent attempt to avoid the general rule limiting liability,
courts have broadly defined active operations, sometimes giving
the term a strained construction in cases involving dangers known
to the occupier." (Italics added, p. 114.)

We then explained that the classifications of trespasser, licensee
and invitee, the immunities from liability predicated upon those
classifications, and the exceptions to those immunities (such
as the active negligence rule) had led to complexity and confusion
and often "do not reflect the major
factors1
which should determine whether immunity should be conferred upon
the possessor of land." (Pp. 116-117.) Accordingly, in
Rowland
we declined to follow and perpetuate the foregoing rigid classifications,
immunities and exceptions, adopting in their place the basic
test "whether in the management of his property he [the possessor
of land] has acted as a reasonable man in view of the probability
of injury to others, and, although the plaintiff's status as
a trespasser, licensee, or invitee may in the light of the facts
giving rise to such status have some bearing on the question
of liability, the status is not determinative. . . . Where the
occupier of land is aware of a concealed condition involving
in the absence of precautions an unreasonable risk of harm to
those coming in contact with it . . . the trier of fact can reasonably
conclude that a failure to warn or to repair the condition constitutes
negligence."
(P. 119.)2

Although the instant case was tried prior to our decision in
Rowland,
it is settled that "On appeal, however, we must apply the law
as it stands today. . . . 'It is the general rule that a decision
of a court of supreme jurisdiction overruling a former decision
is retrospective in its operation and that the effect is not
that the former decision was bad law but that it
never was the law.' [Citation.]"
(Beard v. Atchison, Topeka & Santa Fe Ry. Co.,
4 Cal. App. 3d 129, 135 [84 Cal. Rptr. 449],
applying
Rowland
to reverse a nonsuit granted prior to that decision.)
Therefore, we must analyze the evidence in the light
of
Rowland's
principles in determining whether any basis exists
for finding PG&E negligent toward decedent.

As we have seen, plaintiffs' evidence was sufficient to indicate
that PG&E knew, or at least should have known, that Calvin or
his roommates had been unscrewing the bulb of the lamp
post,3
that the presence of high voltage current constituted a high
risk of harm to anyone tampering with the bulb; that reasonable
safety precautions (such as straightening the bent post, locking
the canopy in place, or warning of high voltage) could have been
taken; and that PG&E's failure to take such precautions rendered
the lamp post and bulb
unsafe.4
As such a trier of fact could reasonably conclude that PG&E's
failure to warn or to repair this dangerous condition constituted
negligence.5
A jury could, of course, conclude otherwise. Yet it seems apparent
that plaintiffs were entitled to have the jury consider
the question, and consequently the nonsuit in PG&E's favor
should not have been granted on the theory that, as a matter
of law, PG&E was not
negligent.6

b. Negligence of the Chases —
Nonsuit in favor of the Chases was entered on the
theory that, as a matter of law, the evidence failed
to establish that they breached any duty of care toward
Calvin, their tenant. We agree. Although they owned the apartment
in which Calvin resided, they possessed no control or authority
over the street
lamp,7
and had no knowledge of its dangerous propensities. Accordingly,
the evidence was insufficient to support a finding that the Chases
acted unreasonably in the management of their property.
(Rowland v. Christian,
supra,
69 Cal. 2d 108, 119; Civ. Code, § 1714.)

c. Negligence of City —
Plaintiffs' theory of recovery against defendant City
was that City had some measure of control over
the street lamp, and had notice that Calvin and his roommates
had complained regarding the intensity of the light. At trial,
however, plaintiffs failed to establish the nature of the control
possessed or exercised by City, or the extent of its knowledge
regarding the dangerous condition of the pole or decedent's tampering
therewith. Moreover, neither the lamp post nor the apartment
itself were public property of the City. Following presentation
of their case, and during arguments with respect to the motions
for nonsuit, plaintiffs seemingly invited a nonsuit in favor
of City by offering no argument or response to City's motion.

Plaintiffs now suggest that City may have had some affirmative
obligation to inspect street lamps for potential hazards. Section
818.6 of the Government Code provides, however, that a public
entity is immune from liability for an injury caused by its failure
to inspect or its negligent inspection of property other than
property owned or controlled by it.
(See also
Gov. Code, § 830, subd. (c).)
As noted above, plaintiffs' evidence was insufficient
to establish that City owned or controlled the street lamp. Moreover,
even assuming that City had some measure of control over the
lamp, there was no evidence indicating that City, by negligent
act or omission, created the dangerous condition (Gov. Code,
§ 835, subd. (a)), or had actual or constructive notice
of that condition (Gov. Code, §§ 835, subd. (b), 835.2).
We conclude that nonsuit was properly entered in City's favor.

2. Decedent's Contributory Negligence

The trial court also held, in nonsuiting plaintiffs,
that decedent was contributorily
negligent8
as a matter of law. Ordinarily, the issue of contributory
negligence is one for the jury.
(Pike v. Frank G. Hough Co.,
supra,
2 Cal. 3d 465, 473.)
Thus, "The rule is that 'Where the evidence on the issue
of contributory negligence is conflicting, and would support
a finding either way, the question is one of fact and not of
law, and must be decided by the trier of the facts.' [Citation.]
'[Contributory] negligence is not established as a matter of
law unless the only reasonable hypothesis is that such negligence
exists; that reasonable or sensible men could have drawn that
conclusion and none other . . . .' [Citation.]"
(Hogue v. Southern Pacific Co.,
1 Cal. 3d 253, 259 [81 Cal. Rptr. 765, 460 P.2d 965].)

Contributory negligence generally falls within one of two categories:
(1) voluntary exposure to the danger arising from defendant's
negligence, or (2) other conduct falling below the standard of
due care, i.e., for an adult, the conduct of a reasonable man
under like circumstances.
(See
2 Witkin, Summary of Cal. Law,
supra,
Torts, § 325, pp. 1521-1522; Rest.2d Torts,
supra,
§ 466.)
In order for voluntary exposure to danger to constitute
contributory negligence, plaintiff "must have knowledge of such
facts that, as a reasonable man, he should realize the danger
involved," and "his intentional exposure of himself to the known
danger must be unreasonable. In order that it may be unreasonable
it is necessary that a reasonable man in his position would not
expose himself to it."
(Rest.2d Torts, supra, § 466, com. at p. 512.)

Thus, our courts have often held that one who knowingly touches
a high voltage power line or wire may be held contributorily
negligent as a matter of law, since the danger of electrical
shock from such high voltage lines is "presumed to be familiar
to men of average intelligence."
(Andrews v. Valley Ice Co.,
167 Cal. 11, 20 [138 P. 699]
[power lines: decedent was a construction worker who "must have
known the danger of getting near highly charged wires"];
seeShade v. Bay Counties Power Co.,
152 Cal. 10, 12 [92 P. 62]
[hanging power lines: decedent was warned not to touch lines
and "knew the danger of live wires"];
cf.Mosley v. Arden Farms Co.,
26 Cal. 2d 213, 217 [157 P.2d 372, 158 A.L.R. 872]
[all men are charged with knowledge of "the
qualities, characteristics, and capacities of things and forces
in so far as they are matters of common knowledge at the time
and in the community . . ."]; Rest.2d Torts, supra, § 290,
and illus. 1 [one who grabs high voltage power line is negligent
notwithstanding ignorance of danger if danger is
matter of common knowledge in community].)

The evidence in the instant case failed to establish that Calvin
himself knew or suspected that the lamp carried high voltage
current, or that he appreciated the risk he took in attempting
to unscrew the bulb. He had seen his roommates remove the bulb
successfully upon several occasions, and there was nothing about
the lamp pole or bulb to indicate any possible danger. Although
the jury might have concluded that a 24-year-old college
student9
such as Calvin must have known the risk involved, the trial court
removed that issue from its consideration.

Therefore, we are left with the question whether, under an objective
standard, Calvin, as a reasonable man, should have appreciated
the risk of substantial injury or death. Although the authorities
indicate that all reasonable men may be deemed to know the risks
inherent in touching overhead power lines, we cannot say on the
present record that it is a matter of common knowledge either
that ordinary street lamps contain high voltage current, or that
one risks substantial injury by attempting to unscrew a street
lamp bulb of the nature involved herein. As noted above, plaintiffs'
expert, Oliphant, testified that there was nothing about the
lamp pole which would indicate that it contained high voltage,
and that only an expert could make that determination. Moreover,
the fact that the bulb was removed on several occasions without
causing an electrical shock is, at least, some indication that
Calvin's death resulted from an unusual combination of factors
with which no lay person may be said to have common knowledge.

It should be kept in mind that upon retrial of this case, defendant
PG&E will have the opportunity of establishing, to the jury's
satisfaction, that decedent knew or should have known the danger
involved in attempting to unscrew the bulb in question. For example,
defendant may be able to show, by expert testimony or otherwise,
that it is a matter of common knowledge in the community that
such a danger exists. Nothing in the present record, however,
establishes that proposition, and we are unable to say that the
matter is so beyond reasonable dispute as to be subject to judicial
notice. (Evid. Code, § 452, subds. (g) and (h).)

We return to the rule, set forth above, that contributory negligence
is not established as a matter of law unless reasonable men could
have drawn that conclusion and no other.
(Hogue v. Southern Pacific Co.,
supra,
1 Cal. 3d 253, 259.)
A natural disinclination to tamper with any electric force
would, perhaps, lead many reasonable men to conclude that Calvin
acted negligently. Other reasonable men, acknowledging the dilemma
which confronted the boys, the various steps they took to resolve
their problem before resorting to self-help, and the presence
of highly technical factors involved in appraising the dangers
of electrical shock, might conclude that Calvin acted as they
might have acted under similar circumstances. It is precisely
this potential diversity of opinion among reasonable men which
leads us to conclude that plaintiffs were entitled to a jury
determination of Calvin's contributory negligence.

Defendant PG&E points out, however, that Calvin's
conduct violated a public ordinance and urges that such
violation constituted contributory negligence per se.
Section 585 of the San Francisco Police Code
makes it unlawful for "any person . . . without authority,
to extinguish any public light," and plaintiffs concede that
Calvin violated this ordinance. The California cases have held
that under certain circumstances, the violation of a statute
or other regulation may constitute negligence per se, or at least
raise a rebuttable presumption of negligence.
(SeeSatterlee v. Orange Glenn School Dist.,
29 Cal. 2d 581, 587-590 [177 P.2d 279];
2 Witkin, Summary of Cal. Law,
supra,
Torts, §§ 230-235, pp. 1423-1432, and cases cited.)
Similarly such a violation by the plaintiff
may constitute contributory negligence per se.
(Farole v. Eichman,
39 Cal. 2d 822, 824 [249 P.2d 261];
2 Witkin,
supra,
§§ 334-337, pp. 1534-1539, and cases cited.)
The rule of the foregoing cases is now codified in section
669 of the Evidence Code (added 1967), which provides:

"(a) The failure of a person to exercise due care is presumed if:

"(1) He violated a statute, ordinance, or regulation of a public
entity;

"(2) The violation proximately caused death or injury to person
or property;

"(3) The death or injury resulted from an occurrence of the nature
which the statute, ordinance, or regulation was designed to prevent;
and

"(4) The person suffering the death or the injury to his person
or property was one of the class of persons for whose protection
the statute, ordinance, or regulation was adopted.

"(b) This presumption may be rebutted by proof that:

"(1) The person violating the statute, ordinance, or regulation
did what might reasonably be expected of a person of ordinary
prudence, acting under similar circumstances, who desired to
comply with the law . . . ."

It seems apparent to us that the presumption of negligence set
forth in section 669 did not form a proper basis for a nonsuit
against decedent. First, defendant PG&E has not shown
that section 585 was intended to prevent injury or death
from electrocution. The complete text of section 585
(adopted in 1903) is as follows:
"It shall be unlawful for any person to hitch or fasten any animal
to, or to place any placard or notice upon, or in anywise to
injure any lamppost or hydrant, or any growing tree, upon any
public street, or, without authority, to extinguish any public
light." The evident purposes of section 585 are to protect public
property and assure adequate lighting of public streets. Thus,
the requirement of section 669, subdivision (a), subsection (3),
that the death or injury resulted from an occurrence of the nature
which the ordinance was designed to prevent, is not satisfied.
Further, as section 585 evidently sought to protect the street-using
public, by assuring adequate street lighting, it cannot be said
that Calvin Mark was, under section 669, subdivision (a), subsection
(4), one of the class of persons for whose protection
the ordinance was adopted. Accordingly, two essential
elements of section 669 remain
unfulfilled,10
and we need not reach the further question whether the jury should
have been given the opportunity to determine, under section 669,
subdivision (b), subsection (1), whether Calvin acted as a reasonable
person would have acted under similar circumstances who desired
to comply with the law.
(SeeAlarid v. Vanier,
50 Cal. 2d 617, 624 [327 P.2d 897],
and
Beard v. Atchison, Topeka & Santa Fe Ry. Co.,
supra,
4 Cal. App. 3d 129, 140,
regarding the rebuttable nature of the presumption of negligence.)

Defendant PG&E asserts that even if the question of contributory
negligence was a matter for the jury to decide, nevertheless
nonsuit was proper because Calvin "willfully" violated the above-quoted
police ordinance. Defendant has cited no cases which would support
this theory, and our research has disclosed none. Were we to
accept the premise that one who "willfully" engages in unlawful
conduct thereby forfeits any claim to recover in tort for another's
negligence, we would totally undermine the rationale underlying
Rowland v. Christian,
supra,
69 Cal. 2d 108, 119,
that plaintiff's status as trespasser should be only one of
several factors to be weighed by the trier of fact in determining
liability.

We conclude that decedent was not contributorily negligent as
a matter of law and that nonsuit should not have been granted
in favor of defendant PG&E. The judgments in favor of defendants
Chase and City are affirmed; the judgment in PG&E's favor is
reversed.

Disposition

We conclude that decedent was not contributorily negligent as
a matter of law and that nonsuit should not have been granted
in favor of defendant PG&E The judgments in favor of defendants
Chase and City are affirmed; the judgment in PG&E's favor is
reversed.

I concur with the majority that nonsuits were
properly entered against plaintiffs in favor
of the defendant landlords and the defendant City and County
of San Francisco. I would further hold that the nonsuit was also
properly entered in favor of Pacific Gas and Electric Company
(P. G. & E.) and, accordingly, I dissent from the majority holding
that the judgment in favor of that defendant is to be reversed.

The record fairly establishes, as the majority conclude, that
there is sufficient evidence to support a finding of negligent
conduct on the part of P. G. & E., its employees or agents, at
least for purposes of avoiding a nonsuit on that limited ground.
(SeeGrudt v. City of Los Angeles
(1970) 2 Cal. 3d 575, 586-587 [86 Cal. Rptr. 465,468 P.2d 825].)
Plaintiffs must additionally establish, however, the impropriety
of the trial court's finding that the decedent was, as a matter
of law, contributorily negligent.

Contributory negligence exists as a matter of law where reasonable
men could have drawn no other sensible conclusion than that the
conduct of the injured party fell below the standard to which
he should conform for his own protection.
(Hogue v. Southern Pacific Co.
(1969) 1 Cal. 3d 253, 259 [81 Cal. Rptr. 765,460 P.2d 965].)
An intentional and unreasonable exposure to danger created by
defendant's negligence, of which danger the decedent had knowledge
or had reason to know, constitutes contributory negligence. (Rest.2d
Torts, § 466(a).) The majority concede on sound authority
that the danger of electrical shock is presumed within the knowledge
of all reasonable
men.1
The decedent, who was 24 years of age, undisputedly was thus
required to conduct himself as would a reasonable man with knowledge
of the dangerous propensities of electrical current.

Contrary to inferences which may be drawn from the majority opinion,
the mechanics of extinguishing the light in the instant case
were fraught with hazards not apparent in changing a household
light bulb. The large two-and-one-half-foot plastic canopy enclosing
the bulb was secured to the steel pole by three metal clips which
first had to be loosened or disengaged before the canopy itself
could be removed. Thereafter it was necessary to extinguish the
light by unscrewing the hot bulb from its porcelain socket. This
could be accomplished by standing on a metal fire escape and
leaning against or reaching across a metal railing. This action
the decedent took while barefooted. With the canopy removed not
only the bulb but also the heavy bare electrical terminals
were exposed to sight and touch. Through these terminals flowed
current which powered such an intense light that one
could read even with the drapes drawn and the room lights
extinguished. To remove the bulb the decedent, wearing
ski gloves, of necessity faced a bright light and reached his
hands into an area which was within a few inches of the exposed
terminals.2
The issue, then, is the simple one whether a person with knowledge
of the danger of electrical shock and who has conducted himself
in the manner indicated has exercised that degree of care which
he is required to use for his own protection. Even though decedent
may have thought there was no other method available by which
he could seek refuge from the disturbing effects of the bright
light, the reasonable man would not engage in the type of conduct
undertaken by decedent and encounter the risk of electrocution.
(Cf.
Rest.2d Torts, § 473, com. d.)
Wilful disregard of a risk known to him or so
obvious that he must be taken to have been
aware of it, and so great as to make it highly probable
that harm would follow
(cf. Prosser, Law of Torts (4th ed.) p. 185)
resulted in decedent's unfortunate death. I cannot realistically
come to any other conclusion but that, as a matter of law, the
decedent completely failed to conform to the standard required
of him, and that his failure was a proximate cause of his death.

Footnotes:

*
Retired Associate Justice of the Supreme Court sitting under
assignment by the Chairman of the Judicial Council.
[Back]

1.
Such factors include "the foreseeability of harm to the plaintiff,
the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant's conduct and
the injury suffered, the moral blame attached to the defendant's
conduct, the policy of preventing future harm, the extent of
the burden to the defendant and consequences to the community
of imposing a duty to exercise care with resulting liability
for breach, and the availability, cost, and prevalence of insurance
for the risk involved."
(Rowland v. Christian,
supra,
69 Cal. 2d 108, 113.)
[Back]

2. See also
Civil Code section 1714, providing that
"Everyone is responsible, not only for the result
of his willful acts, but also for an injury
occasioned to another by his want of ordinary care
or skill in the management of his property or
person, except so far as the latter has, willfully or
by want of ordinary care, brought the injury upon himself. . . ."
Although
Rowland,
supra,
pertained to the liability of one occupying real
property, the same rule would apply in measuring
the liability of an owner or supplier of personal property.
(SeeHolliday v. Miles, Inc.,
266 Cal. App. 2d 396, 401 [72 Cal. Rptr. 96];
2 Witkin, Summary of Cal. Law (1960) Torts, § 251, pp. 1446-1447.)
[Back]

4. SeeAustin v. Riverside Portland Cement Co.,
44 Cal. 2d 225, 231-232 [282 P.2d 69],
regarding the duties owed by one having control of electricity,
including the duty to insulate electrical wiring and to make
prompt inspections to insure its safety.
[Back]

5.
In terms of the various factors suggested by
Rowland
as determinative of liability (fn. 1, ante),
harm to decedent was certainly foreseeable,
given PG&E's knowledge of tampering with high voltage wiring,
and a clear causal relationship existed between the accident
and PG&E's asserted negligence in failing to warn of or repair
the hazard. Although PG&E may have been "morally" without blame,
imposition of liability would enhance the policy of preventing
future accidents. Finally, imposition of liability does not seem
unduly burdensome to PG&E considering the probable availability
of insurance covering accidents of this nature which are not
likely to recur with great frequency.
[Back]

6.
Plaintiffs also asserted at trial that PG&E had a specific statutory
duty of care pursuant to an order of the Public Utilities Commission
formulating safety requirements for "overhead electrical line
construction."
(See
General Order 95, rules 11, 20-8, and 37.)
Having examined the content of this order, we conclude that the
trial court properly excluded it from consideration on the basis
that it was inapplicable to street light poles or posts, being
concerned only with construction standards for exposed overhead
lines supported from crossarms and towers. This conclusion is
supported by the fact that General Order 95 has separate provisions
governing street lighting.
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7.
PG&E has admitted that it owned and maintained the light pole
and appurtenances involved herein.
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8.
"Contributory negligence is conduct on the part of the plaintiff
which falls below the standard to which he should conform for
his own protection, and which is a legally contributing cause
co-operating with the negligence of the defendant in bringing
about the plaintiff's harm." (Rest.2d Torts, § 463.) "Unless
the actor is a child or an insane person, the standard of conduct
to which he must conform for his own protection is that of a
reasonable man under like circumstances."
(Id.,
§ 464, subd. (1).)
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9.
The record indicates that none of Calvin's courses at college
involved the physical sciences, and the expert witness, Oliphant,
testified that "It doesn't make any difference what his age is
unless he is aware of the voltage that is there."
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1.
Part of this common knowledge is the fact that even household
current can produce a fatal shock. In my opinion, the majority
erroneously attempts to distinguish knowledge of "high voltage"
current from the current involved in the case at bar.
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2.
Included in the record are photographic exhibits clearly portraying
the juxtaposition of the window, fire escape, lamp post, canopy,
bulb when exposed, and the exposed terminals and circuitry within
the canopy at the base of the bulb.
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